' MUHAMMAD KHALID MEHMOOD KHAN, J.---The appellant filed a suit against the respondents for declaration and permanent injunction, claiming that his father Sohawa was the owner, of land measuring 72-Kanals 13-Marlas detail of which is given in the plaint, Sohawa died on 11.9.1998 leaving behind the appellant his only son, respondent No,4 and predecessor in interest of respondents Nos.5 and 6 are the nephews of deceased Sohawa, the appellant claimed that he is the only son of Sohawa and is entitled for the entire land of Sohawa after his death being the sole legal heir. The appellant claimed that his father orally gifted the suit property to him in his life time but due to some misunderstanding his father become angry with him, he left his house and started to live with the respondents Nos.4 to 6 his real nephews. Respondent No,4 and predecessor in interest of respondents Nos.5 and 6 by taking undue benefit. Got attested a mutation of sale in their favour. The said mutation is an outcome of fraud and is not binding against the rights of the appellant. The appellant on 09.7.1995 filed the suit claiming that he is one of suit property. The learned civil court dismissed the appellant's suit on 24.9.1997. The appellant assailed the judgment and decree of learned trial court dated 24.09.1997 through an appeal but subsequently the appellant withdrew the appeal with the permission to file a fresh suit. The learned appellate court allowed the appellant to withdraw the suit and file the fresh one subject to payment of Rs,500/- as cost. After that the appellant filed a suit for declaration that he is owner of the suit property being the legal heir of Sohawa and sale mutation No,47 allegedly executed by. Sohawa in favour of respondents No,4 and predecessor in interest of respondents Nos.5 to 6 is illegal, without consideration and is a result of fraud and undue influence. The appellant also claimed that he is in possession of the suit property. The respondents contested the suit and claimed that they are bona fide purchasers for value against consideration, the sale mutation has been attested in their favour in the presence of witnesses. Further the appellant has prayed for cancellation of mutation. Plaintiff No,2 is not the widow of deceased, Sohawa has divorced plaintiff No,2 in his life time and she contracted second marriage. Sohawa with his freewill and against consideration of Rs,90,000/- sold the property to Muhammad Inayat and Bati. The respondents thus have prayed for dismissal of the suit. Out of divergent pleadings of the parties, the learned trial court .Framed the following issues:- "ISSUES:
1. . ' Whether the suit is not maintainable in its present form? OPD
2. Whether the suit has been incorrectly valued for the purpose of court fee and jurisdiction, if so, what is the correct valuation ?OPD
3. Whether the suit is barred by time? OPD
4. Whether the plaintiff has not come to the court with clean hands? OPD
5. Whether the mother of the defendant No,7 has already contracted second- marriage, if so, its effect? OPD
6. Whether the suit is not maintainable in view of preliminary objection No,8 in written statement?
OPD
7. Whether the suit has been filed just to harass the defendants and the defendants are entitled for special costs? OPD
8. Whether the plaintiffs are owners of the suit land? OPP
9. Whether the mutation No,46 in favour of the defendant No,4 and Muhammad Inayat deceased is illegal against fact, without consideration and ineffective upon the rights, of the plaintiffs? OPP 9-A Whether Sohawa had sold the suit land to defendant No,4 and Muhammad Inayat deceased by his own free consent and whether defendant No,4 and Muhammad Inayat predecessor in interest of defendants Nos.5 and 6 were bona fide purchasers for consideration and without notice? OPD
10. Relief"
' Both the parties adduced their respective evidence and vide judgment and decree dated 07.2.2006 the learned trial court decreed the suit. The respondents filed appeal against the judgment and decree dated 07.2.2006. The learned appellate court accepted the appeal on 05.1.2010 holding that the appellant has failed to prove the fact of gift, hence the present appeal.
2. Learned counsel for appellant submits that the learned trial court has wrongly held that the appellant is claiming right in the suit property as donee, the appellant's earlier suit was dismissed as he withdrew the suit before the appellate court with the permission to file the fresh suit. The appellant filed a fresh suit for declaration and permanent injunction with possession against the respondents claiming that the appellant is the legal heir of deceased Sohawa and as such he is entitled for the estate of deceased Sohawa being his only son. Learned counsel submits that the learned appellate court has relied upon a statement of a witness who was admittedly minor at the relevant time. The earlier suit was withdrawn with the permission to file a fresh suit, hence the learned appellate court has erred in law while accepting the appeal. P.W-2 Karmalli has admitted in his cross examination that he affixed his thumb impression in the village and not before the Tehsildar. The other witness has specifically stated that he never affixed his thumb impression on the .Disputed mutation. Learned counsel for appellant thus submits that the learned appellate court has erred in law while accepting the appeal.
3. Learned counsel for respondents supports the impugned judgment and decree of learned first appellate court and submits that Karmalli while appearing as P.W-1 has specifically admitted that he affixed his thumb impression on the disputed mutation. He further submits that Muhammad Nawaz who appeared as D.W-3 has admitted that Sohawa sold 9-Acres 12/13 Marlas land against consideration of Rs,90,000/- to Baati and Inayat, he admitted that he was present at the time of agreement and the amount was paid before him. Learned counsel thus submits that the second appeal is liable to be dismissed.
4. Heard. Record perused.
5. It is an admitted fact that the appellant withdrew his earlier suit wherein he has claimed that his father transferred the land in dispute to him through an oral gift, but it is also a proven fact on record that he withdrew the said suit and filed the second suit with the assertion that he is the real son of' Sohawa and as such he is 'entitled for the estate of deceased Sohawa being his only son and the mutation of sale in favour of respondents is an outcome of fraud and misrepresentation.
The initial onus to prove his assertion was on the appellant, he himself appeared as P.W-1 and specifically deposed that Muhammad Inayat and Baati, the nephews of his father, got attested a mutation No,47 without payment of consideration and through fraud as Sohawa was residing with his nephews. Sohawa was old and physically a weak person. KarmaIly son of Malka is the lumberdar of the village and is the attesting witness of disputed mutation, he appeared as P.W-2 and deposed that he is not aware of any attestation of mutation, he never appeared before Tehsildar nor Patwari, he only affixed his thumb impression on the mutation of Naziran Bibi and Rabia Bibi of their property. The disputed mutation is an outcome of fraud. He specifically deposed that in his entire period of lumberdari he has attested only one mutation. After. The statement of P.W-2 and P.W-1 the onus shifted on the respondents being the beneficiary of the disputed mutation. Respondent No,4, Baati appeared as D.W-1 and deposed that the disputed property was the ownership of Sohawa, they purchased the property against consideration of Rs,90,000/-, he deposed that he is cultivating the land from the days when Sohawa was alive. In cross examination he admitted that at the time of death of Sohawa he was very weak person. He further admitted that the respondents paid the money but he does not aware when the mutation was attested. He deposed that the appellant and his father received the consideration, they used it and subsequently the appellant filed the suit only to blackmail the respondents. D.W-2, Shanan, deposed that agreement was executed between the respondents and Sohawa against consideration of Rs,60/70 thousands, Baati and Muhammad Inayat purchased the land but he is not the attesting witness of the disputed mutation, he is not in a position to depose about the date of agreement to sell, he is not aware when the mutation was attested, however he deposed that money was paid in his presence but he does not remember whether it was Rs,60,000/- or Rs,70,000/-. Muhammad Nawaz appeared as D.W-3, he deposed that Sohawa sold land measuring 9-Acres 12/13 Marlas to Baati and Muhammad Inayat against consideration of Rs,90,000/-, when the amount was paid he was present, he was also present when the agreement was entered into between the parties. In cross examination he admitted that he is not aware when the mutation was attested. He further admitted that when he is appearing before the court as witness his age is 35 years and at the time of alleged agreement to sell he was 10/12 or 15 years old. He further admitted that it is correct that agreement to sell was fake and fraudulent.
6. The respondents produced a document Mark-B, the said document is a statement of Sohawa which he recorded in the earlier suit .Of appellant, in the statement he deposed that he is the absolute owner of the property in dispute, his son has filed the suit only for harassing him, his nephews are cultivating the land in dispute. The said statement was recorded on 20.9.1999. The mutation of sale (disputed mutation) was attested in favour of Baati and Muhammad Inayat on 13.9.1995. In case A Sohawa had sold the property to Baati and Muhammad Inayat, he should deposed in his statement recorded on 20.9.1999 that he has sold the property to his nephews. In the entire statement of Sohawa he has not uttered a single word about the sale and attestation of mutation in favour of Baati and Muhammad Inayat. Baati in his statement has not even deposed that who was the second party of the agreement to sell. He further admitted that he is not aware of the name of witnesses. D.W-2 deposed that the price was .Fixed Rs,60/70 thousands. The third witness D.W-3 has categorically admitted that the agreement to sell was an outcome of fraud. One witness of the mutation Karim alias Karmally has specifically admitted that he has not affixed his thumb impression before Tehsildar nor he appeared before attesting officer or Patwari. The above said evidence is available on record and in the presence of said evidence B the learned first appellate court has wrongly relied on the contradictory statement of D.Ws. When one of the D.Ws.
Was admittedly minor at the relevant time.
7. As far as the question of bar of Order XXIII, Rule 1 & 2, .C.P.C. Is concerned, admittedly the appellant has obtained the permission for filing a fresh suit after withdrawing the earlier one, hence the objection of learned counsel for respondents has no substance. The appellant filed the second suit claiming that he become the owner of land after the death of his father being his son. This fact has not been denied by any one. It is a proven fact on record that the appellant is the son of Sotrawa, Sohawa become angry with his son and divorced the appellant's mother and started to live with his nephews Baati and Muhammad Inayat. I3aati and Muhammad Inayat have admitted that Sohawa was an C old and physically weak person. The respondents being the beneficiary of the disputed mutation have failed to prove that the disputed mutation of sale was attested against consideration.
8. The upshot of the above said discussion is that the appeal is allowed, the impugned judgment and decree of learned first appellate court dated 05.01.2010 is set-aside and the judgment and decree of learned trial court dated 07.2.2006 is restored.